FT ---- 

MEADE -®f S } SENATE | D £ C 0 UM 2 § nt 

JK 1507 
1910 

copy 2 ION OF THE LAWS-THE JUDICIARY 


SPEECH 


HON. REUBEN O. MOON 

OF PENNSYLVANIA 


IN THE 

HOUSE OF REPRESENTATIVES 

WEDNESDAY, DECEMBER 7, 1910 
UPON THE 

REVISION AND CODIFICATION OF THE 
LAWS RELATING TO THE JUDICIARY 


PRESENTED BY MR. HEYBURN 


May 9, 1911.—Ordered to be printed 


WASHINGTON 

1911 
















o 

on- 






<?• rf / 4 


SPEECH 




OF 

HON. REUBEN 0. MOON. 


Tlie House having under consideration the Hill (H. R. 23377) to codify, revise, 
and amend the laws relating to the judiciary— 

Mr. Moon of Pennsylvania said: 

Mr. Speaker, the bill presented to-day is a second installment of 
the great work of revision of the laws which has been under consider¬ 
ation of this House for a number of years. It is not my purpose at 
this time to recall the history of the revision commission and the 
various steps taken by this House and by this committee during the 
last 10 years to get these bills so perfected that they might be taken 
up for final consideration. All Members here will. I think, remember 
that in the Sixtieth Congress, after nearly 10 years of active work, 
we succeeded in securing the revision and codification of the laws 
respecting crimes, or what is popularly known as the penal code. 

When this work of revising the laws of the United States was 
originally submitted to it. our committee felt the impossibility of 
attempting to secure in one bill or during one session of Congress the 
revision of the laws of the United States, covering over 9,000 sec¬ 
tions. They were reminded of the fact that the committee, in 1873, at 
the time the laws were last revised, attempted that impossible task, 
and as a result of that attempt the work was rendered absolutely 
nugatory, and within five years from that time a new revision was 
authorized by this House by committing the work to one man, Mr. 
Boutwell, of Massachusetts. 

Therefore Ave chose to take up separate subjects of the laAv which 
were capable of a natural subdivision, and for reasons not necessary 
here to refer to we reached the penal code first and enacted it into laAv 
March 3, 1909. 

Proceeding upon the same lines, Mr. Speaker, the committee now 
presents for the consideration of this House that title in the Revised 
Statutes known as “ Title 13—The Judiciary.” This bill that you are 
noAv asked to consider is confined wholly to that subject, and relates 
only to the courts. It contains 11 chapters, and embraces the 
geographical division of the country into judicial districts, the 
organization of the respective Federal courts in that territory, the 
jurisdiction conferred upon these courts by the Constitution and 
under the respective acts of Congress and treaties made pursuant 
thereto, and to certain phases of judicial procedure in the exercise of 
that jurisdiction. 

The bill is reported from the Committee on the Revision of the 
Laws. The report of the Congressional Revision Commission was re- 

3 



4 


KEVISION OF THE LAWS-THE JUDICIAKY. 


ferred to a joint committee of the House and Senate by public reso¬ 
lution No. 58. The report of the joint committee was unanimous in 
recommending the present bill. It was reported to the Senate in 
March, 1909, and the report to the House was referred by the Speaker 
to the House Committee on the Revision of the Laws, which reported 
it back to the House by unanimously adopting the report and recom¬ 
mendations of the joint committee. 

The joint committee was empowered to revise and codify the laws 
and to recommend changes in existing law. In the performance of 
the work on the bill it met during the recess of Congress and spent 
much time and labor in perfecting it. It searched through the Stat¬ 
utes at Large to collect the various acts relating to the judiciary, and 
the bill presented comprises many hundreds of pages scattered 
through numerous volumes of these statutes. The work of examining, 
comparing, eliminating superfluous and repealed statutes, and codify¬ 
ing them into one concrete bill has been laborious, and this bill now 
before you for consideration represents the result of this completed 
work on this title. 

The judicial power of the Federal courts of the United States has 
no parallel in any other country in the world. The great statesmen 
who framed the Constitution of the United States created their own 
model. Historic precedent for written constitutions did not exist, 
and while the philosophic scheme adopted by them of a complete 
separation between the judicial, legislative, and executive branches of 
the Government had been alluded to by advanced thinkers upon the 
science of government, no other nation had ever had the courage or 
the opportunity to hazard the future of a new State upon its suc¬ 
cessful practical adaptation to human needs. These wise builders 
were schooled in the experience of the strenuous times in which they 
lived. The necessity for a union of the colonies during the Revolu¬ 
tion and their disastrous experience under the Articles of Confedera¬ 
tion had taught them the absolute necessity of a supreme judicial 
power, and had led them to realize that that judicial power should be 
equal to and coordinate with the legislative and the executive depart¬ 
ments of the Government; and they, therefore, by that instrument 
created a judicial tribunal, invested it with an authority and clothed 
it with a legal power unknown to the most advanced nations of the 
earth—a power which in its appropriate sphere is absolutely supreme, 
from whose decree there is no appeal, whose jurisdiction is unbounded, 
extending from the sovereign States to the humblest citizen, and em¬ 
bracing in its limitless scope the legislative powers of Congress and 
the executive will of the President himself. Therefore, Mr. Speaker, 
because the provisions of this bill relate to this judicial system its 
importance to the country becomes at once apparent. 

The principal feature of this bill and the one to which I desire to 
call especial attention in these opening remarks is a proposed reor¬ 
ganization of this Federal judicial system, and this reorganization 
consists in the elimination of one of the existing courts of original 
jurisdiction, the circuit court, and the consolidation of this jurisdic¬ 
tion in the existing district court. To explain the reasons for this 
proposed change it will be necessary for me to allude briefly to the 
history of the judicial scheme provided for by the Constitution of the 
United States, and completed by the various acts of Congress relating 


REVISION OF THE LAWS-THE JUDICIARY. 


5 


to the judiciary. The constitutional provisions respecting a Federal 
judiciary are as follows: 

Section 1 (Article III). The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the Congress may 
from time to time ordain and establish. 

Sec. 2. The judicial power shall extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority; to all cases affecting ambassadors, 
other public ministers, and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to which the United States shall be a party; to 
controversies between two or more States; between a State and citizens of an¬ 
other State; between citizens of different States; between citizens of the same 
State claiming lands under grants of different States; and between a State, or 
the citizens thereof, and foreign States, citizens, or subjects. 

Paragraph 8, section 5, of Article I, under the enumerated powers 
of Congress, provides that the Congress shall have power “ to consti¬ 
tute tribunals inferior to the Supreme Court.” 

The Supreme Court is created by the Constitution itself, and one of 
the first acts of Congress was to establish the number of judges of 
which the court should be composed, to assign to it jurisdiction, and 
to create, define, and invest Avith jurisdiction such inferior courts as 
were necessary to discharge the duties of this coordinate branch of the 
Government. 

On the first day of the opening of the first Congress there was in¬ 
troduced in the Senate by Oliver Ellsworth, of Connecticut, a bill for 
this purpose, which became a law on September 24, 1789, and is 
known in history as the judiciary act of 1789. 

After providing that the Supreme Court of the United States 
should consist of one Chief Justice and five associate justices, and con¬ 
ferring upon it original jurisdiction in two classes of cases and vest¬ 
ing in it final appellate jurisdiction in all cases arising under the Con¬ 
stitution and acts of Congress, the bill proceeded further to divide 
the entire territorial domain of the United States into judicial dis¬ 
tricts and to establish therein a court, to be known as a district court, 
and to provide for each court a judge, to reside within the district, 
who should be known as a district judge, and to invest this court with 
certain jurisdiction in both civil and criminal causes. The next pro¬ 
vision of the bill was to group the districts so created into three cir¬ 
cuits, to be known as the middle, eastern, and southern circuits, and 
to confer certain jurisdiction upon these courts in both civil and 
criminal causes, and in addition to this original jurisdiction to invest 
this circuit court with an extensive appellate jurisdiction from the 
district court, and to provide that such circuit court should consist of 
two Supreme Court justices and the district judge previously pro¬ 
vided for. 

It will be observed, Mr. Speaker, that this act, although it created 
judicial circuits, did not create the office of circuit judge, but pro¬ 
vided, as before stated, that the judicial authority in these circuits 
should be exercised by two Supreme Court justices and the district 
judge; and in this connection I desire to state that the office of circuit 
judge was not created by Congress for a period of 80 years, or until 
1869, except the creation of the so-called midnight judges, bv the act 
of 1801, which was repealed by one of the first acts of the Jefferson 
administration and never went into effect. Immediately after the 
act of 1789 became law, President Washington appointed John Jay, 


6 


REVISION OF THE LAWS-THE JUDICIARY. 


of New York, Chief Justice of the Supreme Court, and the following- 
named persons accepted commissions as associate justices: John Rut¬ 
ledge, Janies Wilson, William Cushing, John Blair, and James 
Iredell. 

The Supreme Court of the United States met for the first time in 
the city of New York on the first Monday in February, 1790, and 
organization was perfected by appointing a clerk, and the court then 
adjourned for want of business. The simple and unimposing cere¬ 
monies of the opening of this great tribunal gave little promise of 
its future greatness, and it may be interesting to the Members of the 
House if I read a few lines of description of that momentous event 
from the pen of a very distinguished member of my own bar, the Hon. 
Hampton L. Carson, author of “A History of the Supreme Court of 
the United States.” Mr. Carson says: 

Not a single litigant had appeared at their bar. Silence had been unbroken 
by the voice of counsel in argument. The table was unburdened by the weight 
of learned briefs. No papers were on file with the clerk. Not a single decision, 
even in embryo, existed. The judges were there; but of business there was none. 

Not one of the spectators of that hour, though gifted with the eagle eye of 
prophecy, could have foreseen that out of that modest assemblage of gentlemen, 
unheard of and unthought of among the tribunals of the earth, a court without a 
docket, without a record, without a writ, of unknown and untried powers, and 
of undetermined jurisdiction, there would be developed within the space of a 
single century a court of which the ancient world could present no model and 
the modern boast no parallel; a court whose decrees, woven like threads of 
gold into the priceless and imperishable fabric of our constitutional juris¬ 
prudence, would bind in the bonds of love, liberty, and law the members of our 
great Republic. Nor could they have foreseen that the tables of Congress would 
groan beneath the weight of petitions from all parts of the country inviting 
that body to devise some means for the relief of that overburdened tribunal, 
whose litigants are now doomed to stand in line for a space of more than three 
years before they have a chance to be heard. 

So little was known, Mr. Speaker, of the potential powers of this 
new tribunal, thus so inauspiciously ushered into existence, that the 
great lawyers of the country had little aspiration for appointment 
upon its bench. It is a significant fact and worthy of attention that 
while at this moment the eyes of the American Nation are fixed upon 
President Taft and watching with eager interest his appointment 
to two vacancies upon that bench, and while the greatest lawyers of 
this great land would feel that their selection to a position upon this 
high tribunal would be the greatest honor within the gift of the 
American people, yet in the early history of this court its dignity 
was not understood, its transcendent supremacy was not dreamed of, 
and the lawyers of that day had little conception of its greatness. 
Why, Mr. Speaker, I wonder if the lawyers of to-day remember that 
George Washington, during the brief period of his two administra¬ 
tions, made three appointments as Chief Justice of the Supreme 
Court, and that two of the distinguished lawyers so appointed re¬ 
signed in order to accept more lucrative and more honorable posi¬ 
tions. John Jay, appointed in 1789, resigned in 1790 to become 
governor of the State of New York. Oliver Ellsworth, appointed in 
1797, resigned in 1801 to become chief justice of his native State of 
Connecticut. Robert Id. Harrison, originally appointed by Washing¬ 
ton as one of the associate justices, declined, preferring to accept an 
appointment to the position of chancellor of the State of Maryland, 
and John Rutledge shortly after his appointment resigned, and the 


REVISION OF THE LAWS-THE JUDICIARY. 


7 


position was declined by Charles Coatesworth Pinckney and Edward 
Rutledge, and William Johnson was finally secured as his successor; 
and in the year 1801, after the resignation of Oliver Ellsworth as 
Chief Justice, President Adams tendered the position again to John 
Jay, of New York, but he declined to accept it, and it may be interest¬ 
ing to this House if I read his brief letter to President Adams 
stating the ground of his declination. 

Jay said: 

I left the bench perfectly convinced that under a system so defective it would 
not obtain the energy, weight, and dignity which w T as essential to its affording 
due support to the National Government, nor acquire the public confidence and 
respect which, as the last resort of the justice of the Nation, it should possess. 
Hence, I am induced to doubt both the propriety and expediency of my returning 
to the bench under the present system. 

Not only, Mr. Speaker, was the power and dignity of this great 
court misconceived by the legal profession, but it seems to have been 
misunderstood both by the legislative and executive branches of the 
Government, and early in its existence it was obliged to resist en¬ 
croachments from both of these coordinate powers. In 1791 Congress 
passed an act to provide for the settlement of claims of widows and 
orphans, and to regulate the claims of invalid pensioners, and im¬ 
posed upon the circuit court of the United States certain duties rela¬ 
tive thereto, and made their action subject to the supervision of the 
Secretary of War and finally to the revision of Congress. The Chief 
Justice of the United States, with Cushing circuit justice and Duane 
district judge, refused to comply, and declared that neither the legis¬ 
lative nor the executive branches of the Government could constitu¬ 
tionally assign to the judiciary any duties but such as were judicial 
and that were prepared in a judicial manner, and that neither the 
Secretary of War nor any other executive officer, nor even Congress, 
were authorized to sit as a court of error. In 1793 President Wash¬ 
ington, upon the advice of his cabinet, being greatly embarrassed by 
the intrigue of Genet, the French minister, who was endeavoring to 
involve this country in war in connection with the French Revolution, 
requested of the Chief Justice of the Supreme Court an opinion as 
to the proper construction of the treaty with France. He requested 
advice upon certain legal questions most interesting and important. 
Twenty-nine inquiries carefully formulated w T ere submitted—ques¬ 
tions of international law, condemnation prizes, etc. To these the 
Chief Justice declined to comply and asserted with dignity that it 
would be improper for them to anticipate any case which might arise 
or indicate their opinion in advance of argument. 

In the early days, therefore, Mr. Speaker, no man clearly foresaw 
the scope of this new tribunal, but after the lapse of more than a 
century we are able to form a just judgment of the wisdom of our 
judicial scheme. The achievements of the Supreme Court of the 
United States as one of the coordinate branches of the Federal Gov¬ 
ernment have more than realized the expectation of the founders of - 
the Nation. It has discharged the fullest measure of its duty in the 
extension and development of the country. Without ostentation and 
with no physical power to coerce, it has summoned before its bar the 
sovereign States of the Nation and has declared their laws unconsti¬ 
tutional and void. It has subjected to its judicial investigation the 
acts of Congress passed by us and has decreed the limit of our legis- 


8 


REVISION OF THE LAWS-THE JUDICIARY. 


lative powers. It has by a bold legal interpretation imbued a rigid 
written Constitution with elasticity and life and molded it to the 
amazing changes of a progressive century, without in any degree 
impairing its stability as the chartered guardian of our national 
freedom; it has blazed the way of American progress by judicial 
decisions that have become the accepted and acknowledged guides of 
legislation, and when we look to find the constructive law of this 
Nation we look for it, not alone in the statutes of the American Con¬ 
gress, but in the decisions of that great court. In Marberry v. Madi¬ 
son, Gibbons v. Ogden, Cohens v. Virginia, McCullough v. Mary¬ 
land, Trustees of Dartmouth College v. Woodward, the Northern 
Securities case, and a hundred other Supreme Court decisions, we 
find the accurate bounds of constitutional and legislative power and 
the true legal principles that guide and control our national growth 
and progress; and at this moment the great commercial, financial, 
and industrial organizations of the whole country are Avaiting with 
intense anxiety the decision of that court in two great cases pending 
therein, which may revolutionize the established fabric of corporate 
activity as it now exists in this country and exercise a potential in¬ 
fluence upon the industries of the world. 

Mr. Speaker, the jurisdiction of the Supreme Court provided by 
the act of 1789 was almost wholly appellate. The court Avas in exist¬ 
ence and ready to discharge its high functions, but, as Mr. Carson 
has so eloquently explained, there Avas not a single case upon its 
docket, and the first work of the Supreme Court justices was there¬ 
fore done on the trial of cases in the exercise of the original juris¬ 
diction of the circuit court. 

To carry out the provision of the judiciary act which assigned 
two Supreme Court justices to each circuit, Chief Justice Jay and 
Associate Justice Cushing took the eastern circuit, Wilson and Blair 
the middle circuit, and Rutledge and Iredell the southern circuit, and 
in this capacity and in this order they began to lay the foundation 
of that judicial system which was soon destined to command the 
Avondering admiration of the philosophical historian and to challenge 
the respect of the tribunals of the world. 

The work in its beginning was strenuous and exacting, and I have 
no doubt that the difficulty in obtaining lawyers willing to accept this 
exalted position was in no small degree due to the rigors and hardships 
incident to this peripatetic judicial life. William Wilson, of Penn¬ 
sylvania, one of the framers of the Constitution and one of the great¬ 
est lawyers of his day, and one of the most illustrious of the Supreme 
Court justices, lost his life AvhiJe traAmeling in the southern circuit to 
assist his brother Iredell in the work of that circuit. But the foun¬ 
dation of our great judicial system was laid by these men in the cir¬ 
cuits. Many of the most important trials in our early history were 
conducted by the justices of the Supreme Court in these circuits. 
The memorable trial of Aaron Burr for treason was held in the cir¬ 
cuit court at Richmond, Va., with John Marshall, then Chief Justice, 
presiding; and m the trial of that case was established by him a legal 
definition of treason Avhich has become the recognized law of the land. 
^ These Avere the palmy days of the circuit court. The people of the 
States knew little of the central court at Washington, and they re¬ 
sented its existence; they feared its power. They Avere slow to recog¬ 
nize the necessity of a court outside of the jurisdiction of their own 


REVISION OF THE LAWS—THE JUDICIARY. 9 

State and administering laws other than the laws of their own crea¬ 
tion? and the sessions of the circuit courts in the various towns and 
cities in the circuits where it was held were made the occasion by the 
justices of the Supreme Court of acquainting the people with this 
new dual system of government, of reconciling them to Federal juris¬ 
diction, and of enlightening them upon the chief political topics of 
the day. It was known long in advance, and on that day the people 
from the surrounding towns and cities flocked to the courthouse to 
witness the great sight of the opening of the circuit court, upon the 
bench of which sat two justices of the Supreme Court and the judge 
of the district court. I hold in my hand an extract from a news¬ 
paper, entitled the “ United States Oracle of the Day,” published at 
that period, describing the opening of the circuit court in Ports¬ 
mouth, N. H., as follows: 

Circuit court. On Monday last the circuit court of the United States was 
opened in this town. The Hon. Judge Paterson presided. After the jury were 
impaneled the judge delivered a most elegant and appropriate charge. The law 
was laid down in a masterly manner. Politics were set in their true light by 
holding up the Jacobins as the disorganizers of our happy country and the 
only instruments of introducing discontent and dissatisfaction among the well- 
meaning parts of the community. Religion and morality were pleasingly incul¬ 
cated and enforced as being necessary to good government, good order, and good 
laws; for “ when the righteous are in authority, the people rejoice.” 

We are sorry that we could not prevail upon the honorable judge to furnish 
a copy of said charge to adorn the pages of the United States Oracle. 

After the charge was delivered, the Rev. Mr. Alden addressed the throne of 
grace in an excellent and well-adapted prayer. 

To the lawyer of the present day, familiar with the crowded calen¬ 
dar, the business atmosphere, and the rapid performance of judicial 
duties in our Federal courts, this picture of a court holiday, a politi¬ 
cal address from the bench, and a closing prayer affords a striking 
commentary upon the changes wrought in judicial procedure by the 
lapse of a hundred years. 

The district court, Mr. Speaker, was inaugurated with no imposing 
ceremonies; it was unostentatiously domiciled in the cities and towns 
of the country. The judiciary act of 1789 had created the district 
as the unit of the Federal judicial system. The territorial area of the 
country was divided into 13 judicial districts, and a district judge 
was appointed in each, who was required by law to be a resident of 
the district from which he w T as appointed. The jurisdiction of this 
court, both civil and criminal, was extensive—exclusive in some 
cases—and concurrent with the circuit court in a large additional 
class of cases, both at common law and in equity. The definite loca¬ 
tion of this court, the fact that the judge was a resident within the 
district, and that it came more intimately in touch with the people 
of the various States and reached their most frequent needs, tended 
to popularize this new tribunal and to reconcile the people to the 
hitherto strange Federal jurisdiction. The additional fact that the 
district judge was also a constituent member of the circuit court and 
participated in the work of that court at all of its sessions laid a 
foundation for the recognition and development, in the State and 
among the people, of the necessity and adaptability of a dual system 
of jurisprudence, and led to an understanding of the principles of 
an allegiance to two distinct sovereignties—a State and a Federal. 

The Federal judicial system thus launched and thus organized was 
an experimental one. It had no precedent in the judicial history of 


10 


REVISION OF THE LAWS—THE JUDICIARY. 


the world. Experience and actual trial could alone test its defects or 
give assurance of its wisdom. Tested by actual experience in the 
field of its operation, weaknesses were developed and acts of Con¬ 
gress from time to time passed to correct them. The Supreme Court 
had practically no original jurisdiction and was created by the 
Constitution as a court of last resort on appeal. Its supreme exercise 
of appellate power was the basis of its existence. The circuit court, 
in addition to its original jurisdiction, was also a court of extensive 
appellate jurisdiction, the judiciary act having vested it with such 
jurisdiction in all cases arising in the district court where the 
amount involved exceeded the sum of $50, and in all cases of admi¬ 
ralty and maritime jurisdiction where the amount involved exceeded 
$300. The district court was the only court whose jurisdiction was 
wholly original. As I have before shown, Mr. Speaker, when this 
judicial system was inaugurated, there was no appellate jurisdiction 
to be exercised by either the Supreme Court or the circuit court. No 
case had been tried. No errors had been committed. No ground 
existed anywhere for appeal. This fact was apparent, and therefore 
no circuit judges were created. The Supreme Court became a court 
of nisi prius and went out into the judicial circuits in a series of State 
trials to enforce the laws in the exercise of its original jurisdiction 
and to make the records out of which should grow the appeals which 
should finally be adjudicated by them as justices of the Supreme 
Court in the exercise of that appellate jurisdiction. But, Mr. 
Speaker, even the constitutional right of a Supreme Court justice 
to sit in the circuit court was so uncertain that it at one time became 
of itself a subject of litigation; and in a noted case, the case of Stuart 
v. Laird, reported in First Cranch, Chief Justice Marshall seriously 
questioned the constitutionality of such an assignment, but decided 
that practice and acquiescence for a period of many years, com¬ 
mencing with the organization of the judicial system, had fixed the 
construction and that this cotemporary and practical exposition was 
too strong to be shaken or controverted. 

The country expanded rapidly. New and vast subjects for the 
exercise of Federal power by the courts were developed, and what 
was originally supposed by the founders of the Government to be a 
limited Federal jurisdiction became one of stupendous scope. The 
docket of the Supreme Court, originally without an entry, began to 
grow. The judges of that court were necessarily gradually with¬ 
drawn from the circuit. The fact that certain members of the court 
had sat in the original case out of which grew the pending appeals 
tended to weaken the force of their final adjudication. The trial 
of causes in the district court began to multiply, and as these dockets 
increased in size appeals from its decisions became more and more 
numerous, and thereby the appellate work of the circuit court devel¬ 
oped and grew rapidly. And it can be easily understood that the 
gradual withdrawal of the Supreme Court justices from the circuit 
court devolved more and more work of that court upon the district 
court judge, because it must be remembered that up till this time 
there was no circuit court judge created and that the district court 
still consisted of a supreme justice and a district court judge. 

As early as 1792 Congress modified the necessity for the constant 
attendance of the Supreme Court justices.in the circuit court; and 
by the act of 1793 they limited to one instead of two the number of 




REVISION OF THE LAWS-THE JUDICIARY. 


11 


Supreme Court justices that should compose the circuit court, such 
action having been made necessary by the gradual growth of the 
docket of the Supreme Court itself. This unsatisfactory condition 
of the judicial system was intensified as the years went on and the 
country increased and subjects of Federal jurisdiction multiplied, 
until, by the act of April 10, 1869, a practical reorganization of the 
system was effected. 

It was provided by that act that there should be created a circuit 
judge in each of the nine circuits, who was given the same power as 
that possessed by the justice of the Supreme Court allotted to that 
circuit. It further provided that thereafter the circuit court in each 
circuit should be held by the justice of the Supreme Court allotted 
to that circuit or by the circuit judge or by the district judge of the 
district sitting alone; and by a further provision limited the duties 
of the Supreme Court justice in the circuit court to a visit of once 
in two years. The change in our system of jurisprudence as effected 
by this act can be readily seen. The pristine dignity of the circuit 
court was diminished by the loss of the Supreme Court justice. Its 
real usefulness was increased by the addition of a circuit judge, 
who would always be present in the circuit. Its future extinction 
was foreshadowed by the fact that its whole functions might there¬ 
after be discharged by a district court judge sitting alone. 

Now, Mr. Speaker, let us observe for a moment a practical opera¬ 
tion of this system under the act of 1869. The Justices of the Su¬ 
preme Court of the United States were practically withdrawn from 
the circuit, their time wholly occupied in the discharge of their consti¬ 
tutional powers as the court of last appeal. The circuit court of the 
United States with an extensive appellate jurisdiction from the dis¬ 
trict court, was largely occupied in the exercise of that jurisdiction. 
It had but one circuit judge in a circuit of vast area, yet it still 
possessed and must still exercise a large original jurisdiction and it 
might be, and frequently was, constituted by a district court judge 
sitting alone. The district court continued to exercise the original 
jurisdiction conferred upon it by the act of 1789 and by the large 
number of acts of Congress passed since that time by which such in¬ 
creased original jurisdiction has been conferred. 

This was the state of our judicial machinery and its practical opera¬ 
tion after that time. Unsatisfactory as such a system doubtless was, 
and unsystematic in its distribution of the judicial business of the 
country "and imperfect in its power to administer the Federal law, 
little complaint was heard as to its operation. But, Mr. Speaker, a 
new difficulty arose—one doubtless entirely unforseen by the framers 
of that system—the marvelous expansion of Federal power, created 
by acts of Congress and judicial construction; the creation of new 
arts; the invention and application of new agencies in commerce and 
in the industries; the rapid settlement of the country and the phe¬ 
nomenal increase in population so rapidly multiplied the number of 
cases brought to the Supreme Court of the United States, that its 
dockets became overcrowded. The court was utterly unable to keep 
pace with the judicial growth of the Nation. Justice was so long 
delayed and the settlement of the new legal principles so constantly 
arising and so essential to the national growth so long deferred that 
Congress was petitioned from all sections of the country for relief 
and redress. 


12 


REVISION OF THE LAWS-THE JUDICIARY. 


The growth of the appellate work of the Supreme Court had been 
slow. In 1801, when Chief Justice Marshall was appointed, the 
number of cases brought into it for adjudication was only 10 and the 
number during the five following years was 120, or an average of 24 
a year. Within the five years ending in 1850, the number of cases 
brought into the court was 35T, or an average of 71 a year, and 
Associate Justice Field, speaking on the occasion of the centennial 
celebration of the organization of the Supreme Court of the United 
States, in 1890, said: 

Up to the middle of the present century the calendar of the court did not 
average 140 cases a term and never amounted at any one term to 300 cases. 
The calendar of the present term exceeds 1,500 cases. In view of the condition 
of the court, its crowded docket, the multitude of questions constantly brought 
to it of the greatest and most extended influence, surely it has a right to call 
upon the country to give it assistance und relief. Something must be done in 
that direction and should be done speedily to prevent the delay to suitors now 
existing. To delay justice is as pernicious as to deny it. 

Mr. Speaker, this universal demand for relief resulted in the intro¬ 
duction into this House a few months later, in April, 1890, of a bill 
entitled “An act to define and regulate the jurisdiction of the courts 
of the United States.” This act provided in the first section for the 
total abolition of all of the original jurisdiction of the circuit court 
of the United States and the vesting of that jurisdiction in the dis¬ 
trict court. It provided further for the creation in each judicial 
circuit of the United States of a court to be known as the circuit 
courts of appeals, to consist of three judges in each circuit. The 
jurisdiction of this circuit court was to be wholly appellate and was 
formed by taking from the existing circuit court all of the appellate 
jurisdiction exercised by it, and by taking from the Supreme Court 
of the United States exclusive appellate jurisdiction in a very large 
number of cases then vested in that court and vesting final jurisdic¬ 
tion in this new court; and it also further provided for the creation 
of 18 additional circuit judges to fill the positions created in the new 
court. 

This bill was reported from the Judiciary Committee and was 
passed by practical unanimity in the House (only 13 votes being re¬ 
corded against it) on the 15th day of April, 1890, and was sent to the 
Senate of the United States. That body did not concur in the bill. 
It devised a different method for relieving the pressure upon the 
Supreme Court. It followed practically the provisions of the House 
bill in the creation of the nine new appellate courts. It refused to 
adopt that portion of the bill which abolished the original jurisdiction 
of the circuit court. The bill came back from the Senate in the clos¬ 
ing days of the Congress, and on the 3d day of March, 1891, the day 
before the expiration of that Congress, the report of the conference 
committee was brought before the House for consideration. The 
House at that time was very reluctant to accept the amendment of 
the Senate bill, and several Members of the House having charge of 
the bill declared that their only reason for acquiescing in the con¬ 
ference report, which accepted the Senate provisions, was that the 
necessity for the relief of the Supreme Court was so great that some¬ 
thing must be done at once, and that to refuse to accept the Senate 
amendment at that time would necessarily defer the adoption of any 
act for its relief, and that they adopted the bill with the Senate 
amendment with full knowledge of the fact that it left the judicial 


REVISION OF THE LAWS-THE JUDICIARY. 


13 


system in a defective condition and with the confident expectation that 
a future Congress, at some early time, would correct the mistake that 
they were then making. 

This act of March 3, 1891, did relieve the Supreme Court of the 
United States. The new courts of appeals have become great courts, 
useful and effective. They exercise final jurisdiction in a very large 
number of cases with entire satisfaction to the whole country. But 
the defect of that act in continuing the original jurisdiction of the 
circuit court has grown more and more obvious year by year. The 
present status of the courts of the United States is as follows: 

One Supreme Court, consisting of a Chief Justice and eight asso¬ 
ciate justices. 

Nine circuit courts of appeals, one in each judicial circuit, consist¬ 
ing of three judges each. These courts may be composed of the 
Chief Justice of the United States, the associate justice allotted to 
the circuit, the circuit judges within the circuit, and the district judges 
within the circuit, any two of whom may constitute a quorum. 

Seventy-seven circuit courts, one in each judicial district, which 
courts are required by acts of Congress to be held in 276 different 
places in the said circuits. 

Seventy-seven district courts, which are required.by acts of Con¬ 
gress to be held in 276 different places. 

There are now 29 circuit judges who are qualified by law to per¬ 
form the work of both the circuit courts and the circuit courts of 
appeals. 

There are 90 district judges who are required by law to perform 
the entire work of the district courts, and who by the act of 1869 are 
qualified to hold a circuit court sitting alone, and by the act of 1891 
are made constituent parts of the circuit courts of appeals. 

There are in addition to these courts of general jurisdiction three 
special courts of the United States—a Court of Claims, created by 
the act of 1855, consisting of a chief justice and four associate jus¬ 
tices; a Court of Customs Appeals, created by the act of 1909, con¬ 
sisting of a presiding judge and four associate judges; and a Com¬ 
merce Court, created by the act of 1910, consisting of five circuit court 
judges, who are especially provided for in the act. 

These courts, however, are courts of limited jurisdiction, created 
for special purposes, and their powers and functions are derived en¬ 
tirely from the acts creating them. 

As has been seen, by acts of Congress, in each of the 276 places in 
which the courts must be held, there is a provision for holding both 
the circuit and district court, and in each of these 276 places are 
maintained the organization and machinery of these two respective 
courts, both of which are courts possessing only original jurisdiction. 

The jurisdiction conferred by acts of Congress upon these courts is, 
in a large majority of cases, concurrent, and in a comparatively few 
cases is exclusive jurisdiction conferred upon them. This jurisdic¬ 
tion differs very little in character and is distinguished by no con¬ 
trolling principle. They both have jurisdiction of civil and criminal 
cases, the only distinction being that the circuit court has exclusive 
jurisdiction in capital cases. In some cases the line of demarcation 
is simply the amount invovled in the litigation; in some cases there 
exists a mere arbitrary division, giving the admiralty and maritime 
jurisdiction exclusively to the district courts, and matters relating to 


14 


REVISION OF THE LAWS-THE JUDICIARY. 


revenue to the circuit courts; and during* the past 25 years few. it 
any, acts of Congress have been passed that conferred jurisdiction 
upon courts in which the same jurisdiction has not been conferred 
upon both the circuit and the district courts. The chief original 
distinction between the circuit and district court as created by the 
act of 1798 was that the circuit court was then invested with a large 
appellate jurisdiction from the decisions of the district court, and when 
the act of 1891 took away from the circuit court this appellate juris¬ 
diction there no longer existed any reason in law or in principle for 
its continuation. 

It is true that the circuit court is an historic court. It occupied a 
unique and useful position in the original judicial scheme. It played 
a conspicuous and honorable part in the introduction and upbuilding 
of the Federal system in the Nation. It afforded in those early days 
a notable and inspiring illustration to the citizens of the State of 
the parental care of the new Nation in sending among the people of 
the States the most notable judges of the land to administer justice 
to them. But the glory of its early days necessarily rapidly declined. 
The act of 1793, which withdrew one of the justices from the circuit, 
weakened its importance. The act of 1869. which created the circuit 
court judge and made the district judge alone competent to hold a 
circuit court, and practically withdrew both Supreme Court justices, 
pointed to its rapid decadence. The act of March 3, 1891, which took 
from it all of its appellate jurisdiction and relegated it to a court of 
limited scope and powers already exercised by the district court, 
completed its final overthrow and made the House bill of 1890, which 
provided for its entire extinction from the judicial system, a matter 
of prime necessity. 

Let us examine carefully the actual operations of the two courts as 
they exist side by side in every subdivision of every district through¬ 
out the country to-day, numbering 276. In this vast territory there 
are 29 circuit court judges—residing in 9 judicial circuits—upon 
whom is devolved the large and rapidly increasing labors of 9 circuit 
courts of appeal. The eighth judicial circuit embraces 13 States, 
comprising an area vastly greater than that occupied by the whole 
Nation when the judiciary act of 1789 was passed. The ninth judi¬ 
cial circuit exercises, in addition to its regular jurisdiction, appellate 
jurisdiction from the Treaty Court in China and the district courts 
of the Hawaiian Islands, and is the Supreme Court of the District of 
Alaska. The third judicial district is about to assume appellate juris¬ 
diction from the courts of Porto Rico. A circuit court judge who sits 
in the trial of causes in his court of original jurisdiction is disquali¬ 
fied from sitting in his circuit court of appeal when such cases come 
before it, and in order to maintain a full bench a district judge in the 
circuit must be taken from his work in the district to sit with the 
other circuit court judges. 

The district court judges now perform substantially all of the work 
of the circuit court in every circuit in the land. Your committee 
made a careful investigation of this subject. They addressed, through 
the Department of Justice, letters to all of the circuit court clerks of 
the country, and found from official information thus obtained the 
following fact : In the year 1908, out of a total of 18,000 days on 
which circuit courts were held throughout the United States, the cir¬ 
cuit judge sat in those courts only about 2,000 days, or about 11 per 



REVISION OF THE LAWS—THE JUDICIARY. 


15 


cent i t ie tu ? e ’ remaining 16,000 days the court was 

presided over by the district judge. In 22 States circuit courts were 
held exclusively by the district judges, and in 6 other States the 
total aggregate of days in which the court was held by the circuit 
judge did not exceed 2 days for each State. Even this statement 
does not show with entire accuracy the extent of the abandonment by 
the circuit court judge of the work in his court of first instance, be¬ 
cause of the 2,000 days placed to his credit a substantial portion of 
that tune was employed ‘in hearing motions and in discharging the 
duties of the circuit court in the city in which he lived. Mr. Speaker, 
this statement carries with it no imputation of neglect of duty on the 
part of the circuit judges. No more conscientious, industrious, and 
self-sacrificing body of judges exists in the world than the circuit 
judges of the United States. They have neither the time, the 
strength, nor the means to travel over these thousands of miles of 
territory and sit in the 276 places that Congress has fixed for holding 
circuit courts, and there exists absolutely no reason why they should 
do it. 

In every district resides a district judge. Under the act of 1869 
he is as fully qualified to hold a circuit court sitting alone as is the 
circuit court judge. He is equally learned in the law. He has a 
better acquaintance with the people and the environments of the 
causes arising in the district, and he has the time to transact the 
business, and lie has now for a number of years conducted these 
courts to the entire satisfaction of the respective communities and to 
the honor and credit of the Government ; while if the 29 circuit 
court judges should attempt the impossible task, it would so delay 
and obstruct the work of the circuit court of appeals as to defeat the 
purpose of the act of 1891, and would bankrupt the judges themselves 
to pay their traveling expenses. Yet, because under existing laws 
certain exclusive original jurisdiction is given to the circuit courts, 
there is necessarily maintained in every district of the United States, 
and in every division thereof, the complete machinery of a circuit 
court, consisting of court rooms, clerks, dockets, marshals, and all of 
the extensive and expensive features of a court organization. The 
commingled jurisdiction between it and the district courts is perplex¬ 
ing and oftentimes confusing to litigants and attorneys. Its exclusive 
jurisdiction is not based upon any organic principle of distinction 
and there exists no longer any reason either in theory or practice 
why the original jurisdiction of this court should be maintained. 

The reorganization of the courts, therefore, as provided by this bill 
will substitute for the present cumbersome, impracticable, confusing, 
and expensive judicial system a simple, concrete, elastic, and logical 
one; will eliminate a court of original jurisdiction wholly unneces¬ 
sary and in practical operation long since fallen into disuse. It will 
not displace a single judge or change the present general practice of 
the courts. It will simplify the proceedings by consolidating jurisdic¬ 
tions and by having all cases in courts of first instance and all plead¬ 
ings filed therein brought and filed in the district court and will 
preserve the same plan of judicature originally designed by the 
framers of the Constitution and adopted by most of the States, to wit, 
one court of original jurisdiction, an intermediate court of appellate 
jurisdiction—final in many cases—and the Supreme Court as the 
court of last resort. 


16 


REVISION OF THE LAWS-THE JUDICIARY. 


Certain provisions contained in the bill make the plan recom¬ 
mended in this revision as fully elastic as the present system and 
avoids the necessity for the creation of any new judges. It is pro¬ 
vided that if in any district the work devolving upon the district 
court is too heavy to permit its prompt transaction by the district 
court judge, a circuit court judge, not fully occupied, may be desig¬ 
nated to perform the work as a district judge under exactly the 
same principles and regulations as district court judges now perform 
the work of circuit court judges. The plan has been recommended by 
the American Bar Association and by many of the leading lawyers 
and judges of the country, was once adopted by this House, and we 
hope it will now become law. 

Mr. Mann. Will the gentleman allow an interruption? 

Mr. Moon of Pennsylvania. Certainly. 

Mr. Mann. In the last railroad bill that we passed we provided 
in reference to the issuing of writs of injunction that the district 
judge should call in a circuit judge to help him pass upon the matter 
of dissolving or maintaining interlocutory injunctions. The gentle¬ 
man from Pennsylvania has stated that in the eighth circuit—and, of 
course, that is an extreme case—these judges receive no extra compen¬ 
sation. but do receive traveling expenses when away from home at 
some other point in the State to sit as a circuit judge. Is there not 
any way of remedying that matter at an early date? 

Mr. Moon of Pennsylvania. I hope it may be remedied, but we 
have not proposed any change of this kind. 

Mr. Mann. The way you remedy it is to abolish district court 
judges. 

Mr. Moon of Pennsylvania. We do not abolish any judge. 

Mr. Mann. No; you do not abolish the individuals, but you 
abolish them as circuit court judges by that title and create a court 
of appeals of which they are the judges. 

Mr. Moon of Pennsylvania. That is already created. We do not 
change the nomenclature of the judges. 

Mr. Mann. I beg the gentleman’s pardon. I think the gentleman 
will find that his bill does change the nomenclature and calls them 
judges of the court of appeals. 

Mr. Moon of Pennsylvania. But we do not change the nomen¬ 
clature. 

Mr. Mann. I had a letter from the Attorney General this morn¬ 
ing, and the gentleman from Pennsylvania is entirely familiar with 
it. The judge sitting in a circuit court of appeals gets $10 a day 
and traveling expenses ; but if called upon to go to St. Louis or St. 
Paul or some other point, under the railroad law, to do something 
that must be done, he has to pay that expense out of his own pocket. 

Mr. Parsons. If the gentleman from Pennsylvania will allow me, 
1 want to say that the title of the judges is not changed. Section 116 
of this bill itself provides that they shall be circuit judges. 

Mr. Moon of Pennsylvania. That is right; it does not affect that. 

Now, Mr. Speaker, as I have said, under the act of 1869 all or prac¬ 
tically all the work of the courts in the first instance is done by the 
district judges. Those of you familiar with the practice in the 
Federal courts have often seen a procedure which we seek to avoid. 
The district judge is sitting trying district business. In the course 
of the day the district calendar will be completed; no other case be- 


REVISION OF THE LAWS-THE JUDICIARY. 


17 


ing ready for trial, the district court is adjourned. The judge, with¬ 
out leaving the bench, calls in another clerk, who brings in another 
docket, and, in many cases, another crier, and the crier proceeds to 
open the circuit court, and the district judge, without changing his 
seat, proceeds to dispose of the circuit-court docket. In 276 places 
in this country are maintained the paraphernalia of a circuit court, 
while nearly the entire business is transacted by the district judge. 

Mr. Madden. Will the gentleman permit a question ? 

Mr. Moon of Pennsylvania. Certainly. 

Mr. Madden. Would the proposition that the committee recom¬ 
mends take the circuit judges out of the circuit-court work and con¬ 
fine their efforts to the work of the appellate bench ? And if it did, 
would not that necessitate the appointment of a lot of new district 
judges? 

Mr. Moon of Pennsylvania. I have just explained the fact that it 
will not require the appointment of a single additional judge. 

Mr. Madden. If you take the circuit judges away from their 
original work, would not that original work have to be done? 

Mr. Moon of Pennsylvania. My back was turned to the gentleman 
and he did not hear what I said. I explained that in the first place 
80 per cent of all that work is now done by the district judges, and 
that we have a provision that whenever, in any district, the work 
accumulates the Supreme Court justice assigned to that circuit, or 
the circuit court judge senior in commission, may designate a cir¬ 
cuit judge to sit in the district court and relieve the district judge. 
Therefore, the machinery is so complete that it does not require a 
single additional judge. We employ the energy and the time of the 
corps of judges existing in the United States just exactly as they are 
employed to-day. 

Mr. Mann. Now, on that point, my understanding is that a good 
many of the circuit judges now take jurisdiction of causes involving 
large receiverships. I do not mean for the purposes of getting the 
receiverships, but- 

Mr. Moon of Pennsylvania. Covering a broad area of territory. 

Mr. Mann. Yes. Those cases involve a good deal of labor, require 
a good deal of time on the part of the judge. Of course, the work is 
usually done in chambers. As I understand this bill, that power 
would" be taken away from the circuit judges. 

Mr. Moon of Pennsylvania. I am glad the gentleman has asked 
that question, because it brings to my mind what I ought to have 
explained, the one exception in which an original jurisdiction is re¬ 
tained by the circuit judge. It is not an exception to the abolition 
of the circuit courts, but a case in which a circuit judge retains 
original jurisdiction. It is true that there has been in the past, may 
be in the present, and there doubtless will be in the future, litigation 
which involves the appointment of receiverships for roads that travel 
not only across one, two, three, or four districts, but States and cir¬ 
cuits, and the question was raised as to how a district judge could 
handle a proposition of that kind by the appointment of a receiver 
in a judicial district. Let me state, in the first place, that under the 
law a circuit judge sitting in a district can not make a decree that is 
territorially any broader than the district, except where there hap¬ 
pens to be two districts in a State. 

S. Doc. 23, 62-1-2 



18 


REVISION OF THE LAWS-THE JUDICIARY. 


That is, the territorial effect of the decree appointing a receiver by 
a circuit judge sitting in a district is in itself no broader than the 
district. They broaden it in this way, and very properly. A man 
seeking the appointment of a receiver will file with the circuit court 
judge in a particular district a bill for that purpose, and will at 
the same time and place submit to the judge ancillary bills to be filed 
in the other districts of the circuit. The judge, when he makes the 
decree appointing the receiver, will forthwith send that bill and 
decree to the clerk of every circuit court in that circuit in which 
any property affected may lie, with an order directing that decree 
shall be entered. That is the way it is accomplished. Now, we seek 
to accomplish it practically in the same way. We realize the fact 
that it was impractical; it was unwise, at least, to permit a district 
judge, sitting in one circumscribed district, to appoint a receiver 
whose jurisdiction would be broader than the district and perhaps 
broader than the circuit. We have therefore provided by the bill 
that when an appointment of a receiver covering this extensive terri¬ 
torial area shall be made, the judge in the first instance may make 
the appointment to preserve the property and maintain the status 
quo, and then this must be confirmed by the circuit judge within BO 
days. I will not go into details, as the gentleman from Illinois 
wanted to know chiefly the manner in which the committee have met 
the proposition, thereby securing to the circuit judge a supervision 
over that condition of affairs. 

Mr. Mann. I Avant to meet both propositions, that and also the 
question as to whether it was desirable to utilize some of the time 
and effort of some of the circuit judges in handling these large cases 
that were handled mostly in chambers, instead of saying they could 
not do any of that work, but must confine their work to the circuit 
courts of appeals. 

Mr. Moon of Pennsylvania. Well, I will say to the gentleman, in 
answer to that, that there were really two opinions in the committee. 
I talked a few days ago with one of our eminent judges, a man per¬ 
haps of as large experience in that particular line of work as any 
other in the country, and he suggested to me that we should still 
leave that jurisdiction directly with the circuit judges. Our plan 
is open to amendment upon the floor of the House, and I bespeak 
for that section and for the whole bill the most careful considera¬ 
tion of every Member of this House to help us perfect it. It was 
the joint judgment of our committee that the method proposed was 
effective and the best; but, as I say, it is open to amendment, and I 
will be very glad to have the gentleman’s assistance. 

Mr. Mann. I have no definite information on the subject. 

Mr. Sterling. Could that be done and still abolish the circuit 
courts ? 

Mr. Moon of Pennsylvania. We take away the original jurisdic¬ 
tion of the circuit courts, but otherwise do not touch them. 

Mr. Sterling. You do not abolish the judges, but you do abolish 
the circuit courts. 

Mr. Moon of Pennsylvania. We do not assign any original juris¬ 
diction to the circuit court. 

Mr. Sterling. They have no original jurisdiction at all, then? 

Mr. Moon of Pennsylvania. We can give them any jurisdiction we 
choose. 


REVISION OF THE LAWS-THE JUDICIARY. 


19 


Mr. Sterling. But you do not in this bill. 

Mr. Moon of Pennsylvania. We do not give them original jurisdic¬ 
tion in the trial of causes; but if we want to retain original jurisdic¬ 
tion in the appointment of receivers, it is in the power of Congress 
to do it. There is nothing in our bill that denies jurisdiction; it is 
only that we do not confer it, but we have the power to confer it 
where we choose. 

Mr. Sterling. They will not have any unless we confer it by law? 

Mr. Moon of Pennsylvania. No. 

Mr. Sterling. Would it be wise to preserve the circuit courts sim¬ 
ply for the purpose of appointing and controlling receiverships? 

Mr. Moon of Pennsylvania. We do not preserve the circuit courts, 
but we can give to the circuit jlodges that power in equity. The com¬ 
mittee has not seen wise to do it, and I say that it is open to amend¬ 
ment and we want the best judgment of every Member of this House 
in its consideration, and we will take that up at the time it comes 
before us. 

Mr. Mann. I want to ask the gentleman if the committee had a re¬ 
port on the number of cases decided by the various courts of appeal 
for any specified time? 

Mr. Moon of Pennsylvania. No. 

Mr. Mann. Showing how much business the different circuit courts 
of appeals had really transacted. Of course that goes into the ques¬ 
tion as to whether the judges’ time was occupied fully. 

Mr. Parsons. The index of the annual report of the Attorney Gen¬ 
eral each year gives that. 

Mr. Mann. I understand that, but I ask whether the committee 
had anything of that kind before it? 

Mr. Moon of Pennsylvania. We had that before us, and whenever 
we thought it necessary resorted to it. 

Mr. Mann. Of course I do not want to criticize the committee, 
but simply ask if you had anything on that subject that you want to 
present to the House? 

Mr. Moon of Pennsylvania. The committee did consider it, but 
we had not made any special report on the subject. 

Mr. Mann. How about these circuits where they have four judges? 

Mr. Moon of Pennsylvania. If there is an idle judge, he should be 
assigned to district court work. He will be assigned to district court 
work, and the other three would be on the circuit court of appeals. 

Mr. Mann. He can not be assigned to that work against his will. 

Mr. Moon of Pennsylvania. We provide that he can not evade or 


escape that work. 

Mr. Mann. He can evade service if he wants to, and most ot them 
do it, sometimes. But did you make any provision as to that ? 

Mr Moon of Pennsylvania. We could not do that. 

Mr. Mann. Do you "make any provision of that kind? 

Mr. Moon of Pennsylvania. We do not. 

Mr. Mann. But you continue the judges? 

Mr. Moon of Pennsylvania. The gentleman can easily understand 
that they can be abundantly employed. 

Mr. Mann. Well, I can not admit that. I think many of them are 
not abundantly employed now. 

Mr. Moon of Pennsylvania. I will say this to the gentleman, that 
we had in contemplation that there should not be an idle circuit 


20 


REVISION OF THE LAWS-THE JUDICIARY. 


judge, but that he should be assigned to the work of a district judge. 
One of the judges wrote me, if confined to work in the appellate 
court, he would be occupied but half of his time, and urged the in¬ 
sertion of the provision assigning circuit court judges to work in the 
district court, which provision we have recommended. 

Mr. Cox of Indiana. He must be a patriot. 

Mr. Moon of Pennsylvania. He is. 

Mr. Speaker, there is one other feature of this bill that requires 
some explanation in these opening remarks. The great expansion of 
the Federal territory, the opening of new sections of the country, and 
the stupendous increase in our population has greatly increased the 
business of the Federal judiciary. The increased popularity of these 
courts and their growing adaptation to the commercial needs of the 
people has made it necessary for Congress from time to time to make 
new judicial districts, to subdivide these districts into what are 
known as divisions, and, finally, to designate a number of places in 
these divisions where the district and circuit court should be held. 
Laws of this kind are now passed at almost every session of Congress 
and have been for a number of years. 

Your committee found upon an examination of the statutes that 
various provisions differing in character were found in these laws. 
Some of these provisions were already covered by existing general 
law upon the subject; others were not. In some instances the law 
creating the division or designating the place for holding court would 
provide where suits of a local nature should be brought; where proc¬ 
esses should be served; where prosecution for crime should be insti¬ 
tuted, and how suits might be transferred from other divisions for 
prosecution. In certain other acts would be found provisions for the 
removal of civil cases from one division to another, prescribing the 
time and manner of removal; in others would be found special provi¬ 
sions for the disposal of pending civil and criminal cases in the event 
of the creation of a new division or a new place for holding court; in 
some acts would be found provisions preserving liens upon property 
acquired prior to the passage of the act; in other cases these special 
acts would in particular instances make special provision respecting 
the drawing of juries and various other matters incidental to local 
procedure. Your committee has eliminated all these special provi¬ 
sions, and has recommended a new section of law of general applica¬ 
tion covering all these subjects. The effect of these new provisions 
recommended by this bill will be to establish uniformity of practice 
throughout the country, and will make it entirely unnecessary for 
Congress in the future, when new divisions and new places for hold¬ 
ing court are provided, to carry into the bill any of these details. 

The general law provides for one clerk of the court in each judi¬ 
cial district. In 8 of the TT judicial districts embraced within the 
States special provision is made for more than one clerk. Each of 
these clerks is an independent clerk entitled to the maximum com¬ 
pensation allowed a single clerk of each of the 70 districts. In one of 
the districts of the State, for instance, there is a provision for six 
separate clerks, each of whom is entitled to receive out of the fees 
received a compensation of $3,500 a year, or six times the amount 
that would be retained bv one clerk, ‘in this same district the same 
man is clerk of the circuit and district court at five places, thus 


REVISION OF THE LAWS—THE JUDICIARY. 21 

entitling him to a maximum compensation of $35,000 per annum if 
the fees collected should be sufficient to reach that sum. 

Mr. Mann. How is that ? 

Mr. Moon of Pennsylvania. Because they are clerks of both the 
circuit and district courts, and they may receive their limit of $3,500 
in each one of those capacities. And in addition to that I am in¬ 
formed there are a great many of the clerks that get a great deal 
in addition from the naturalization fees, which are not included in 
that limitation. 

It seemed to your committee that no good reason existed why there 
should be more than one clerk in any of the districts of the United 
States. We have therefore made provision respecting clerk uni¬ 
form and have provided for the proper transaction of business by a 
provision for the appointment of deputy clerks, wherever the same 
may be necessary, the necessity for these deputy clerks being left to 
the discretion and judgment of the judge of the district. 

In some districts, however, where several divisions existed and 
where Congress after mature deliberation has deemed it necessary 
to provide for the residence of a clerk or marshal at a particular 
place in the division, we have carried that provision in this bill. 

Mr. Speaker, I have occupied the attention of the House for a long 
time. I have set before you our recommendations for the improve¬ 
ment of our judicial system and I have given you my reasons there¬ 
for. Permit me, then, in conclusion, to recapitulate briefly: We seek 
to accomplish by this bill what the House tried to accomplish by the 
bill of April, 1890, and what all of our subsequent experience has 
demonstrated ought to have been accomplished at that time. We 
propose here to revise and codify the laws relating to the judiciary. 
In the creation of the Federal court we have omitted entirely the 
circuit court; we have conferred all of the original jurisdiction aris¬ 
ing under the Constitution of the United States and the acts of 
Congress made pursuant thereto and all other jurisdiction cogniz¬ 
able in courts of first instance upon the district court; we have con¬ 
tinued the circuit court of appeals as it now exists, as it was created 
by the act of 1891 and amended by subsequent acts of Congress; and 
left the jurisdiction of the Supreme Court unchanged. 

The special courts recently created by the several acts of Con¬ 
gress—the Customs Court, the Commerce Court, and the previously 
existing Court of Claims, created by the act of 1855—are reported 
here without change. The organization, jurisdiction, and procedure 
in these courts are specially provided in the act of their creation and 
are reported by the committee as they so exist. But the courts of 
general jurisdiction, if this bill becomes law, will, I repeat, be one 
court of original jurisdiction, one intermediate court of appeal, and 
one supreme court of final jurisdiction. [Applause.] I ask to pro¬ 
ceed with the reading of the bill. 


o 





































- 

. 

4- a • ■ 






• • • 
















■1 







































. ■ • 


. 



1 r ■ ■ ■’ • f • ' * 




' Jr ’ ft i 0 

Ti A 

c, v. * > i ' 


■ ■ 


* * » * ’ > , k * r 

r * • -r ■ ■ | w 




* 










* ' 

■ ■ 







* 











1 





. 

. 








• 






















library 


OF 


CONGRESS 












